Of DACA and Doobies: How We Got to a Point of Anarchy

By Andrew R. Arthur on July 28, 2020

We are currently living in strange times (an understatement if ever there was one). In many places, there is anarchy in the streets, as courts are defaced and set ablaze and churches are desecrated. This lawlessness undoubtedly has many sources, not the least of which is the non-enforcement of the laws, including and especially the immigration laws.

Don't like a public monument? Pull it down, with seeming impunity in most cases ("Police did not intervene."). Maybe the Speaker of the House will reply to such vandalism in a blasé way ("'People will do what they do,' Pelosi said of the protesters.").

But don't get me wrong. History is an evolving process, and what was once acceptable may become less so when viewed through its increasing lens. Personally, I do not care if the people decide to remove monuments they do not like (though my ancestors fought on the side of the United States in the Civil War, so I personally think there should be more monuments to Ulysses S Grant, not fewer) – so long as it is done through a legal process.

The will of the people as expressed through their elected representatives is critical to our survival as a nation. We are diverse in every way that diversity can be delineated: religion, politics, race, national origin, beliefs, and many others. But we remain united (if at all) as "Americans", a self-governing people due certain liberties and subject to legal constraints.

The founders made clear that certain rights are "unalienable" that is, they cannot be deprived by the government – and that government itself derives its powers from the people. There is no sovereign to hold those powers and exercise them as he or she sees fit.

We are bound together, as Americans, by a "social contract", an idea as old as Epicurus (341-270 B.C.) and as fresh as your local neighborhood association meeting. The Stanford Encyclopedia of Philosophy describes the social contract thusly: "The basic idea seems simple: in some way, the agreement of all individuals subject to collectively enforced social arrangements shows that those arrangements have some normative property (they are legitimate, just, obligating, etc.)." It then goes on to explain how it is a much more complicated a concept, but you get the idea.

It is not, and has not been, an easy contract to fulfill. As Hamilton (ever the optimist) stated in Federalist No. 1:

Happy will it be if our choice [of form of government] should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected.

Our social contract both provides and guarantees the aforementioned unalienable rights, and as a people we have been held to account to remain true to them for all. Most will recognize the fifth paragraph above as a reference to the Declaration of Independence, and in part to the most familiar passage therein: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Needless to say, the sentiment that "all men are created equal" was not in fact true at our founding, but we have, as a people, willed it increasingly into being. President Lincoln made Thomas Jefferson's words a keystone of his Gettysburg address, and Dr. King called the nation to account in his August 1963 address at Lincoln's memorial to "live out the true meaning of" these words – "its creed", "a promissory note to which every American was to fall heir."

In accordance with our social contract, we have elected representatives to enact legislation under which we will be governed for the good of all. While some of those laws "sunset" – that is remain in effect for a time certain – most remain in effect until they are amended or repealed. The Immigration and Nationality Act (INA), which was passed in 1952 and amended scores of times since, is by and large the latter.

As a law, the INA is fairly straightforward, for the most part. It specifies to whom it applies (aliens) and to whom it does not (U.S. citizens and nationals, with only limited exceptions). It explains under what terms aliens may enter, how long they are permitted to stay (with discretion provided to the executive branch), and when they are subject to removal or barred from admission.

Reflecting our history as a "nation of immigrants", it fairly liberally allows those fleeing persecution and torture to seek protection, and (likely much more liberally than it should) allows previous immigrants to petition to allow their extended family members to enter and remain permanently.

As noted, that act has been amended many, many times, demonstrating that Congress can, and will, change the terms of entry, the grounds of deportation, and the categories of aliens who can either stay or who must go.

While the INA provides a great deal of discretion to the executive, the executive's discretion to allow aliens to remain is not absolute. Which brings me to my point.

The grounds of inadmissibility are written in mandatory (as opposed to "precatory") terms, and the deportation grounds are even less flexible.

For example, the inadmissibility provisions in section 212(a) of the INA begin: "Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States . . ." (Emphasis added.)

Section 237(a) of the INA, which defines "Deportable aliens", starts: "Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens . . ." (Emphasis added.)

There are waivers and exceptions in both sections of the INA, and of course relief is available to even removable aliens who qualify for it, but otherwise, there is not a lot of wiggle room in either provision.

Notwithstanding the fact that Congress made clear that aliens who are removable should be removed, in June 2012, the then-Secretary of Homeland Security stated by fiat that certain aliens who were otherwise removable should be allowed to remain, and receive work authorization and other benefits, under the "Deferred Action for Childhood Arrivals" (DACA) program.

DACA was implemented only after the so-called "DREAM Act" (which would have granted amnesty to a similar class of aliens) failed in a Democratic-controlled Congress in a lame-duck session in December 2010. And, only after then-President Obama told Univision at a town hall in March 2011 in response to a question about his ability to "to stop deportations of the students" that:

With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed – . . . you know that we've got three branches of government. Congress passes the law. The executive branch's job is to enforce and implement those laws. And then the judiciary has to interpret the laws.

There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.

George Washington University law professor Jonathan Turley described the problems with DACA best when he told the House Judiciary Committee:

In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. . . . What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense.

In other words, the removability provisions in the INA became meaningless with respect to the class of DACA aliens because the president simply did not like them and did not feel like implementing them. Congress be damned.

What respect can we expect of the citizenry for the laws when the president – the chief executive of the United States – disregarded them as he saw fit? The social contract? Rendered asunder by its primary protector. I would like to say that this was a one-off blip, a singular exception for one group of individuals, but it is not true.

Back before the Wuhan coronavirus emptied the streets of Washington, my occasional walks home would almost always be accompanied by the almost constant smell of marijuana in the air. How could that be?

Washington, D.C., is likely the most policed city in the United States, and the seat of the federal government. The Controlled Substances Act, at 21 U.S.C. § 844, makes possession of a controlled substance (including "marihuana", a schedule I controlled substance) a federal offense, and the sale of marihuana is a felony under 21 U.S.C. § 841.

Specifically, pursuant to 21 U.S.C. § 841(b)(1)(D), distribution of 50 kilograms or less of marihuana will net you up to five years in jail and a fine of up to $250,000 ("distributing a small amount of marihuana for no remuneration" – that is sharing a marihuana cigarette or "doobie" – is  a misdemeanor, however).

As Vox explained in November 2018, however: "Despite federal prohibition, the Obama administration took a relaxed approach to marijuana, generally letting states do as they wish as long as they met certain criteria (such as not letting legal pot fall into kids' hands or cross state lines)." (NB: Federal law uses a different spelling for the name of the parts of the plant "Cannabis sativa L.", its seeds, and resin than ordinary usage).

Vice reports that "Trump's Justice Department Is Making Life Hell for Legal Weed", but even then, the current administration's efforts have been more-or-less limited to antitrust investigations, not enforcement in the 44 states where the drug is "legal" (33 for "medical" use, 11 for "recreational").

While I think that DACA was bad policy in addition to being an illegal usurpation of Congress's prerogatives, I am ambivalent as it relates to marijuana (a position that I apparently share with the president). As an immigration judge, it made little sense to deport someone for selling the drug on the streets of Philadelphia when the same person would be deemed an "entrepreneur" in Denver. What is illegal for one should be illegal for the other, or not.

In both cases – DACA and marijuana – however, there are laws on the books, and the laws should either be enforced or changed. This is not a case of, say, a law prohibiting the use of a ferret to hunt in West Virginia (which I assume is enforced, although I am not sure how). There were 643,560 DACA recipients as of March, and as noted 44 states with drug laws that contravened federal law. That is a lot of illegality out in the open, which degrades the respect for the rule of law as passed by our representatives.

Contracts are enforceable in court. The social contract that binds us as a nation is enforceable only to the extent that we are willing, as a people, to enforce it. A failure to do so leads to anarchy; just watch the news.